R.N.Misra, J. - (1.)PLAINTIFF instituted Title Suit No. 164 of 1968 in the Court of the Munsif, Bargarh and obtained an ex parte decree on 9 -11 -1970. An application was made under' Order 9, Rule 13 of the Code of Civil Procedure which was registered as Misc. Case No. 11 of 1970. The restoration proceeding was at the instance of Defendants 1 to 4, 8' and 9. During the pendency of the proceeding, Defendant No. 1 died and the remaining Defendants who were applicants for restoration of the suit moved the trial Court for expunging the name of Defendant No. 1 stating that all his legal re -presentives were already on record, and therefore no substitution was necessary. Plaintiff disputed the position and claimed that Karna -Defendant No. 1 had left behind two daughters, Mukhi and Dukhi who were legal representatives of Defendant No. 1 and were alive; and should, therefore, be brought on record. The learned Munsif called upon the Defendants to bring the two daughters on record. By order dated 9 -8 -1972, the learned Munsif directed that as Defendants did not impleaded the two daughters of the deceased -Defendant No. 1 notwithstanding the direction of the Court the restoration proceeding abated as a whole and dismissed the application. Aggrieved by the order of the learned Munsif, the petitioning Defendants moved the learned Subordinate Judge in appeal.
The lower appellate Court by his decision dated 6 -2 -1974 came to hold that the proceeding had not abated as sons of Karna were already on record and had substantially represented the estate of the deceased and accordingly it vacated the abatement found by the trial Court and called upon the learned Munsif to dispose of the proceeding in accordance with law. This appellate direction is assailed in this revision application at the instance of the Plaintiff on the footing that the order of the learned appellate Judge is contrary to law and is liable to be quashed.

(2.)THERE is no dispute that Karna left behind two daughters -who were heirs and legal representatives of his and they were not on record. When Defendants Petitioners in the restoration proceeding moved for expunging the name of Defendant No. 1, objection was raised before the trial Court that two of the legal representatives had been left out and the proceeding would be bad without them on record. The learned trial Judge gave a direction to bring them on record, Defendants failed to take steps as directed. On these facts would the doctrine of substantial representation apply is the question in issue.
The proviso to Order 9, Rule 13 of the Code runs thus:

Provided that where the decree is of such a nature that it cannot be set aside as against such Defendant (Defendant -applying for restoration) only it may be set aside as against all or any of the other Defendants also:

According to Mr. Patnaik for the Petitioner, this proviso is in the line of the provision of Order 41, Rule 4 of the Code where the provision is:

Where there are more Plaintiffs or more Defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the Plaintiffs or to all the Defendants anyone of the Plaintiffs or of the Defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the Plaintiffs or Defendants as the case may be.

Counsel for Petitioner on this basis contends that it would be possible for one of the Defendants to apply for vacating the ex parte decree, and non -impletion of other Defendants in the application for restoration may not affect its maintainability. But since several Defendants join as applicants, if one of the applicants dies and there is no substitution the application would abate. Reliance is placed on a decision of the Supreme Court in the case of Rameshwar v. Shambehari, A.I.R. 1901 S.C. 1901, in support of such submission. The Court observed that an appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the Plaintiffs or Defendants under Order. 41, rule to when the decree proceeds on a ground common to all the Plaintiffs or Defendants, if all the Plaintiffs or the Defendants appeal from the decree and any of them dies and the appeal abates so far as he is Concerned under Order 22, Rule 3.

Mr. Patnaik submits relying on Section 141 of the Code that the procedure provided in Order 22 applies to proceedings under Order 9 thereof. Section 141 reads:

The procedure provided in this Code in regard to suits shall be followed, as far as it cannot be made applicable in all proceedings in any Court of civil jurisdiction.

On this basis in the case of Shripati Kuer v. Malti Devi : A.I.R. 1967 Pat 320, Order 9 has been, made applicable to proceedings under Order 33 of the Code. On the same logic in the case of Ram Chandra v. State of Utter Pradesh : A.I.R. 1966 S.C. 1888, Section 24 of the Code was applied to a proceeding under Section 146(1) of the Code of Criminal Procedure. I would accordingly hold that provisions of Order 22 are applicable to proceedings under Order 9 of the Code. If there be no substitution, as required, abatement would result.

(3.)COUNSEL for opposite parties has contended on the authority of a decision of the Supreme Court reported in Dolai Maliko v. Krushna Chandra Patnaik : 33 (1967) C.L.T. 1, that as all the sons of the deceased Defendant No. 1 are already on record, it should be held that these heirs represented the entire estate including the interests of the heirs not brought on record and there is no abatement. In the reported decision, some previous cases of the Court itself were taken into account and the legal position was placed thus:
This is a case where one of the Appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased Appellant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have, applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an Appellant are to be brought on record all of them should not be brought on record and any of them should not be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased Appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstance like fraud or collusion to which we have referred above exist.

The position was examined at some length by the Supreme Court in the case of Daya Ram v. Shyam Sundari, A.I.R. 1905 S.C. 1049. The Court took the view that there may be cases where there would be sufficient representation of the estate by the majority of the legal representatives being brought on record, but it was reiterated:

.... The decision to which we have referred as well as certain others have laid down, and we consider also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased Respondent have not been brought on record, and the Appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal could be properly constituted. In other words, if the Appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally....

Thus the legal requirements seems to be that all legal representatives should be brought on record. The only exception is in the case where notwithstanding the bonafide and legitimate enquiries or on account of some bona fide doubts a few of the legal representatives are left out and thus those on the record are said to represent the estate appropriately; in such cases there may not be any abatement. The conduct in the instant case is very different. The Petitioners of the restoration proceeding knew who the legal representatives of the deceased Defendants were. The remaining Petitioners are the sons of the deceased and the legal representatives left out are their sisters. Notwithstanding this position, they claimed that all the legal representatives of the deceased Defendant No. 1 were already on record. The assertion was controverted; yet no action was taken to bring the left out legal representatives on record in spite of direction of the Court. In these circumstances, the doctrine of substantial representation cannot be invoked and the conduct of the Defendants who had applied for restoration does not entitle them to fall back upon the doctrine to save abatement. In fact, as indicated in the case of Daya Ram v. Shyam Sundari, A.I.R. 1905 S.C. 1049, even if there was no abatement, the left out legal representatives were to be brought on record when the matter was brought to the notice of the Court. The Court had given that direction, yet there was no compliance. The recalcitrant attitude of the Defendants applying for restoration disentitles them any indulgence.